TODD McFARLANE: Creator Rights, Lawsuits & IMAGE @20

If there's a hot topic right now in the comic industry, it's creator rights.

But it's not like the subject is a new one.

In fact, it's the 20th anniversary of an event that was centered on creative ownership: the formation of Image Comics.

Over the coming days, Newsarama will be looking at the legacy of that event in 1992 when seven artists decided to start Image Comics. We'll talk to the people who were involved, discuss the issues that prompted the move, and explore what has happened in creator ownership in the 20 years since the event.

But before we dig into what happened 20 years ago, it makes sense that our first interview about creator rights and the legacy of Image Comics would center on Todd McFarlane. As one of the founders of Image, he made a move forward in creator rights, but at the same time, he's been involved in at least one of the more publicized lawsuits over creative ownership -- a disagreement that only recently was settled with Neil Gaiman about Spawn characters.

And last week, news broke that there's yet another creative dispute over Image Comics' best-selling series, The Walking Dead.

One of the more recognizable comic book names outside the industry, McFarlane became a comic book superstar in the '80s as a Spider-Man artist. In 1992, he launched Image Comics with Erik Larsen, Jim Lee, Rob Liefeld, Whilce Portacio, Marc Silvestri and Jim Valentino. The group advocated self-ownership of characters and concepts, and McFarlane's Image series Spawn became somewhat of a phenomenon in the early '90s, inspiring a feature movie and later TV cartoon.

McFarlane eventually began pursuing other business opportunities, including his action figure company, McFarlane Toys, as well as the production studio Todd McFarlane Entertainment and video game company 38 Studios. McFarlane had even become well known to people outside the comics industry for his collection of historically significant baseballs and his stint as co-owner of an NHL team, the Edmonton Oilers.

In the first part of our interview with McFarlane, as part of an ongoing look at the legacy of Image Comics, Newsarama talked to the artist about the current state of creator rights, the road the Image paved, and what he thinks of the latest lawsuits over creative ownership disputes.

Newsarama: Todd, how would you describe the environment in comics, and in creator rights, before you guys started Image in 1992? And did Image change anything?

Todd McFarlane: I think any sort of massive appeal for creator rights was just in its infancy back then. I'd say there was probably more talk, or way more bark than bite, if you will. Everybody said something, but nobody was doing anything about it at that point.

I know that early on, I had started talking to people about, what if we had started a union? Then we could pull some of the power back in our direction. But there wasn't enough support for that. It's interesting how afraid starving artists are that they that won't get a job, given that they're starving because they don't have a job.

At that point, I talked to Erik Larsen and Rob Liefeld. They were thinking about going out and doing independent stuff also. There was a lot of talk about stuff. And people had been doing some things. I mean, there were bits out there, like Elfquest and stuff like that had been out in the marketplace and had done pretty well. And even things like Eclipse had come in. I mean, there were companies like that.

But I think at one point, we were just on the phone going, why do we all have the same kind of idea, but we're all just going to do it at different times and different stages? Why don't we coordinate the effort so that it has more impact, instead of three or four different guys doing three or four different books at three or four different times? Why don't we try to coordinate this assault and see if we can't actually draw some attention to it?

And then once we agreed to that principal, then the question was, well, you know, there's three of us. Wouldn't it be more impactful, like a union, if we had more than three? So we set about trying to add to the number of people. That's where Valentino came in, under the auspices of Rob, because he was doing stuff with Rob. And then we went on the prowl for some of the other guys.

Nrama: One thing you did with Image, eventually, after having control over your own properties, was you decided to open Image Comics up as a place for creators to fully own their own properties. Anyone who wanted to do a comic could work with Image, and they'd own the rights completely. What was behind that decision? And how instrumental do you think that has become toward creator rights today?

McFarlane: I think it's a huge piece of it. And because the principles that we founded ourselves on, which was the seven of us who started, you know. Whilce Portacio who was there during that first week before he decided he didn't want to go for the ride. All of us were just intent on creating and making our own stuff. And then, we were spinning out other ideas. Obviously, Wildstorm and Extreme Studios, you know, Rob and Jim, and I guess Marc, doing way more than Erik and I did. But we didn't want to be out fronting for people saying, "you've got an idea; let me buy it." We didn't want to do that piece of it. And 20 years later, we still don't do that. And it all started right there at the beginning, with the principles we had in 1992. They still guide what we do.

I think that when we came out of the gate and we offered the deal to creators who wanted to jump on board the bandwagon, it was the best deal that was out there, and 20 years later, it's still the best deal. Nobody offers what we offer right now. You know?

The down side of it, which is frustrating to me, as a guy who just always wanted to get out of his cage and at least try to run around free for awhile, is that a lot of people aren't willing to take that leap. Because we don't own anything at Image, we also don't pay you anything. So it's all on you to start with. So you can put a book out at Image, and you can own it, but you've got to put a team together, convince everybody to do it or just fund it yourself or whatever. But they don't get any money from the sales of that until we solicit, sell it and we collect it and give it back to you. So that means there's about a three to four month window where you have to sustain yourself somehow. Somehow. I don't know how you do it, one way or the other.

But from my perspective, I would beg, borrow and steal any and everything that I could. I'd hit up my mom, my dad and my relatives. I mean, anything I could to get enough money to eat macaroni and cheese so that I could survive and keep the electricity on for three months and hope that when that book finally hits the shelf and I collect the money, because I'm going to get the pre-orders, that I can now basically do this book for a hundred issues. And I've run into, sadly from my perspective, way too many guys that have let 90 days of living a bit of a lower standard of life dictate the next 10 years of their life. It's incomprehensible to a guy like me. Are you kidding me? I'd live on the streets for 90 days to just get that opportunity.

And in a bizarre way, they've actually offered to sell their idea to us if we give them a paycheck. And I'm thinking, wow, that's counter to why you'd want to work with Image. Our whole point is for you to own it. Own it yourself.

But you know, everybody comes with a slightly different set of priorities, so I've learned awhile back to stop putting my priorities on somebody else. Just let them do what makes them comfortable.

But no, we will not buy properties. Image doesn't own anything. That's a concept that I think people don't understand. Image doesn't own anything. So Image can't buy it and give you money, because Image doesn't have any true value itself. It's just a publishing house.

Nrama: Let's talk about how Image Comics might have changed some of the things that are making headlines today. We've seen Alan Moore's complaints about his contract with DC, and all of that happened before there existed something like Image, where a person could get their own ideas published without creative ownership issues. And of course, we've seen a controversy over Ghost Rider recently. And I know you've had a few creative disputes...

McFarlane: Yep!

Nrama: Even since Image has been created.

McFarlane: Yep.

Nrama: What are your thoughts on that controversy and what different a concept like Image can make?

McFarlane: You know, from my experience, you can put things into two buckets, if you will. One of them is where you walk into a room, your eyes are open, and you agree to things and, more importantly, you agree to things in a contract and you sign things, right? And then all of the sudden, years go by, and everybody sort of gets revisionist history, and they start rethinking that moment that was there.

That is a different spot than some of the instances that I've had where, you know, you're in a room, you had agreements that didn't go on paper, and then it becomes a he said-she said. There's nothing concrete then. Right?

So I think Blade was one that had been argued about over the years, and then like you said, Ghost Rider and things like that. I think what ends up hurting the creative person in cases like that is the question, did they sign something? I don't know if they did in those two cases. But you sometimes you find people bringing lawsuits because they apparently don't remember they signed a contract that said they didn't have any piece of what they were doing, which is different from some of the disputes that other people have had, and even the ones that I've been involved in, where at least there's a lot more gray in those conversations.

To me, if you signed something, things are a little more black and white. And once the paper trail is there, it seems to be more of an uphill battle to say you should own part of that character.

And the thing is, as a creative person, I always knew when I was working for those companies, that everything I did, they owned. But I knew that. And I was OK with that, because to me, it was just a stepping-stone toward moving to a better place, which in 1992 ended up being Image Comics books.

In my case, and I'm not saying this is the case for everyone, but I felt that I was kind of using Marvel as much as they were using me. I was able to draw a popular character, Spider-Man, and gain a lot of notoriety. All of the sudden there was a lot of attention because I was drawing an iconic character, and it helped to build my career, but then I took advantage of that and went to a new company, Image, with a new character, Spawn, I could take a lot of that momentum over to it. So I was able to take some value. Not copyrights, obviously, of the characters I drew over there, but I was able to take inertia and value of that crowd over to the new gig. And a lot of them came. And then I was able to "cash in" on that second chess move.

Nrama: I get the feeling that, with your experience in creative disputes, that your advice to anyone would be, put it in writing. Right?

McFarlane: Yeah, yeah, yeah. Right. It would be one of the top rules. Just get it down on paper so everybody understands exactly where you're at that day. And so that nobody gets to move the mile marker, you know? You may thing you said one thing, but then somebody else remembers it differently, and it unravels from there.

Even in the independents, you must get it in writing. I mean, I started Image to break away from that work-for-hire, but when somebody is doing Spawn, in a weird way, I sort of act more like a Marvel or a DC because I own that character. And I don't want to be giving that way.

But if somebody wants to come and bring his or her own books to Image, then it's the opposite. We don't want to own anything. You can have it yourself.

Nrama: You can see both sides of the fence, can't you?

McFarlane: Right. And some people have said, "oh, well you guys at Image just started another Marvel or DC because you have work-for-hires and people do your book." Well, that's true, but it's true on only a limited number of books. If we were really like Marvel and DC, every book that came through Image, we'd take a piece of it, which is what the big guys do. They do it on every book. We don't do that. We protect ourselves on our books. So if you think of it as a piece of property, then if I built this house and I spent money on it, I think I should be able to own it. But if you want to find a plot of land next door and build your own house, God bless you. But I'm going to protect my homestead, and you protect yours. And then let everybody else build his or her own little houses as you see fit.

Each one of us should be able to have some claim to the thing that we started at the beginning.

Nrama: I'm curious. When a writer and artist come in with a comic they're making, any legal agreements between the two of them is handled separately from Image, right? The share the writer has, or the artist, or whatever members of that creative team. That's all their responsibility to negotiate and put in writing? Is Image involved in that at all?

McFarlane: No, Image is not involved. I think our contract has a disclaimer paragraph that basically says what they're representing, they must actually have the rights to represent. It's the second to last paragraph in almost every contract. It just says, OK, we're assuming that you have the legal right to even pitch this idea, and that you didn't steal it.

Nrama: And I ask that because I know Robert Kirkman had a contract with his first penciller, Tony Moore, but there's now a creative dispute about proceeds.

McFarlane: Yep. Right.

Nrama: Did you talk to Robert about it?

McFarlane: Yeah. I just went, Robert, what you're about to get involved in is a pain in the ass, take it from me. But there is a silver lining in that you're doing something that matters. Because nobody ever sues anybody over something that doesn't matter. So, you know, if your book was selling four copies, it wouldn't matter what agreement everybody thinks they have. Nobody cares. They only sue when there's money on the table. There's money on the table because you're doing something successful.

You have to get a thick skin, and in a weird way, if people keep coming at you, and lawyers keep coming at you, that means you're doing something successful, that you're enough of a target for them.

Nrama: I do find it interesting, though, that so many lawsuits have popped up in the last 20 years. I know there were some changes to copyright laws during that time that inspired some of it, and certainly the successful comic book movies have also motivated some of it. But do you think the departure of the Image Comics guys in 1992 inspired any of the questioning by creators about who owns what? Or at least questioning the authority of the big guys?

McFarlane: You know, the interesting thing is, that as time's gone by, I think we've become an example on a couple different levels.

One, if you want to leave the big guys, you can go off and have some success. We did it, and years later, you can look at someone like Kirkman having all this success with The Walking Dead. And that shows that lightning can hit twice in the same spot.

But again, because of some of the legal issues I've had, and some of the other smaller lawsuits we've had with our books, and then of course with Robert's now being a little bit more high-profile, we're also an example of this: You can go off and do your own, but you'd better protect that at the same time.

We were doing it and having a fun time and we were mostly artists, not businessmen. So that piece that wasn't nailed down, now I think people are probably learning from our example that, if they are going to go off and do their own book, then maybe they should take a page from the reality of Image, to make sure they've got all their i's dotted and t's crossed with whomever I'm going to be doing business with. Because these legal things can pop up and become time sucks, if you will, out of everybody's creative process.

Nrama: And to really know what you're signing.

McFarlane: Yeah. I think people forget that moment in time. Even if it was a bad deal -- and maybe you did sign a bad deal, and maybe it wasn't even a fair deal, with the clarification that I don't know, because I wasn't there -- but what was true at that point is that none of us lives in a penal colony. At no point did anyone put a gun to your head when you signed it. So whatever your position was in life at that moment, you were able to make a great, an average or a great deal when you put your name on that contract. And that is something you have to live with.

And now, I understand as you go fast forward, that all of the sudden the world changes and the dynamics change and things become more popular, that you forget that you were a starving artist when you signed that deal, and now all of the sudden you want to reinvent what you did.

Everybody willingly signed that contract. The odd thing is that sometimes you're arguing about the terms on that contract. A lot of times, in court, the argument becomes, what does that word mean? What does that word mean? That's where lawyers come in.

Nrama: I guess the comic book industry is giving the legal industry a lot of business nowadays.

McFarlane: Yeah, a lot more than it was 10 or 15 years ago.

Nrama: Let's go back to what you said about there being "talk" about a union before you broke away and started Image. Because you know, 20 years later, there still exists no writers union or artists union or comic creators union.

McFarlane: Nope.

Nrama: Do you think that could ever happen? Do you think it should?

McFarlane: I think the answer's yes! But the problem you have to get past is that, because us as a creative whole, there are so many egos that are involved, you have to put away all your personal competitions and experiences with other creative people and turn it toward the people that you would be negotiating with, and make that priority number one. Not amongst ourselves, right?

So, for example, I can't say that Peter David and Erik Larsen have had the best relationship in life. But could they put those differences aside for the betterment of turning toward the people that are going to now gainfully employ you?

I think the answer's yes. But we nobody's wanting to do that, at least not wanting it badly enough that it's happened.

I can say, though, that once the Image guys did leave, that the big publishers did better some of the conditions, pay rates and some of the royalty structures once we left, because they understood, they didn't want to lose another seven, eight, nine, 10 guys. Right? So even some of the people who stayed behind and criticized us actually ended up doing better because of our leaving. So they benefitted from our move, whether they know it directly or not.